THE APPEAL COURT RULING THAT HALTED CONSTRUCTION OF THE TRANS MOUNTAIN

PIPELINE PROJECT IS A CLEAR WIN FOR THE RULE OF LAW AND MAY PROVE TO BE A VICTORY FOR THE PIPELINE ITSELF.

Since last week’s Federal Court of Appeal decision halting construction on the Trans Mountain pipeline project, the federal government has been inundated with unsolicited advice on what to do next.

The proposed responses have ranged from the uninformed (invoke the notwithstanding clause, which simply does not apply) to the unhelpful (appeal the decision, which would delay the project by months or years, with no assurance of a different outcome) to the undefined (pass a law limiting its implications in some way, which might or might not be helpful but would itself be subject to judicial review).

In Edmonton on Wednesday, the prime minister at first derided such “legislative tricks” but later suggested he was keeping all options open. And yet the most promising response remains the one he first appeared to favour: follow the course the court prescribed.

For as much as the decision was a victory for the Aboriginal and environmental groups who had filed suit challenging the cabinet’s 2016 decision to approve the project, and the National Energy Board report on which it was based, it was mostly a victory for the rule of law.

As such it may prove to be a victory for the pipeline itself, the gravest threat to which remains not the processes set out in law for accommodating the concerns of those it would potentially affect, but the willingness of some of those opposed to defy the law to derail its progress. After this decision, the latter can no longer say their concerns have been ignored; whatever moral high ground they might once have claimed has been lost. By constraining the government to act within the law, the court may also have constrained its critics.

It is the rule of law to which everyone, on all sides, should be committed. The reason it was right to adhere to the National Energy Board and cabinet decisions to this point was not out of faith in the infallibility of either, but because that’s the process. The court’s decision, though it overturned theirs, is part of the same process, and deserves the same respect, regardless of whether it was the decision one might have preferred.

Indeed, I have not seen much in the way of serious criticism of the court’s reasoning, only of its conclusions; the objection seems not to be that the decision was wrong, but that it was inconvenient. Perhaps it was. But that is not the business of the courts. Their business is to apply the law.

Those, such as Alberta’s Conservative opposition leader, Jason Kenney, who fume that the court ignored the economic impact of its ruling, are essentially calling for their own form of judicial activism: the tailoring of legal judgments to suit particular social objectives, rather than in strict conformity with the law.

The law says, and the court found, that the NEB was obliged to take into account the environmental impact of the project, not only on land but at sea — notably on a type of killer whale native to the region. That the NEB failed to do so, and that cabinet accepted its report regardless, the court held, is in violation of the law.

Likewise, a series of landmark Supreme Court judgments going back to Haida Nation in 2004 have established the Crown’s constitutional duty to engage in meaningful consultation with Aboriginal groups whose title and rights could be affected by a project. What counts as “meaningful” consultation is certainly open to interpretation, but in fact the jurisprudence has interpreted it in fairly precise terms, as more than merely taking note of Aboriginal concerns but responding to them, and accommodating them so far as is reasonable. There is no evidence that the court was freelancing here, or “moving the goalposts,” as it has been accused of doing.

This is not, after all, a wholly unfamiliar concept. It is a form of property right. Centuries of common law have upheld the principle that property may not be expropriated, except by due process of law and with payment of just compensation. The equivalent with regard to Aboriginal title and rights is the duty to consult.

Like other rights, this right is not absolute. First Nations do not have a right, the courts have found, to veto projects in the public interest, any more than other group of Canadians do. But they do have, like other Canadians, the right to have their interests taken into account. Their consent is not required, but consultation is — though in raising concerns, they, no less than the Crown, are obliged to act reasonably and in good faith.

That this latest decision has upheld this mutual obligation — upheld the law — with regard to Trans Mountain is evidence, not that it is no longer possible to build pipelines here, but that pipelines must be built according to the law. The court did not rule the project should be cancelled, whatever the gloom of the project’s supporters or the jubilance of its opponents. Neither did it insist that the process start over again from scratch.

Rather, it ordered that the NEB include within its assessment the marine impacts it had improperly left out, and that the government engage in further consultations with Aboriginal groups to the extent needed to properly fulfill its obligation. Each will no doubt delay the project further. Neither is a death sentence.

I realize there is a larger context here, beyond this one decision. After Northern Gateway, after Energy East, with even Keystone XL not a done deal, Albertans, in particular, have every right to feel besieged. The challenge in the longer term will be to find a process that is simpler, quicker and more final, that gives due weight to the concerns of all sides without projects being tied up in endless legal and procedural delays.

But I repeat: it is in the rule of law that Trans Mountain’s safety lies. In losing the battle, it may have won the war.